Decided on July 1, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered March 5, 2011. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for services that it had allegedly provided to its assignor from October 19, 2000 through April 10, 2001. Upon receiving, on September 26, 2008, a document from plaintiff entitled amended complaint, bearing the caption “Dyckman Medical Diag. Treatment, P.C. A/A/O Juana Hernandez against Granite State Insurance Company” and index number 062375/03, defendant served its answer along with discovery demands. Thereafter, defendant moved for, among other things, summary judgment dismissing the complaint on the ground that the six-year statute of limitations had expired prior to the commencement of the action. By order entered March 5, 2011, the Civil Court, among other things, denied this branch of defendant’s motion, determining that the action had been timely commenced. Defendant appeals from this portion of the order.

A defendant seeking summary judgment dismissing a complaint on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action had expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). Here, in support of the branch of its motion seeking summary judgment, defendant annexed an affidavit by a litigation specialist employed by a company that administers claims for it, which company is located in Albany, New York, who merely stated, based on a review of defendant’s records, that defendant had never received a summons and complaint in the instant action prior to September 26, 2008. However, in opposition to the motion, plaintiff proffered a copy of an affidavit of service of the summons and complaint in this action, which indicated that defendant had been served with the summons and complaint on March 25, 2003 at a New York City office. At that time, an action in the Civil Court was commenced by service of the summons (CCA former 400), and service was deemed complete immediately upon personal delivery to the defendant within the City of New York (CCA former 410). The record contains a copy of the summons and complaint, bearing index number 62375, as well as a copy of the affidavit of service, which were both filed with the Civil Court on April 7, 2003. As an affidavit of a process server constitutes prima facie evidence of proper service, defendant’s mere conclusory denial of receipt of that summons and complaint, made by an employee of a company other than defendant and not by someone employed at the New York City office where service was effectuated, was insufficient to rebut plaintiff’s prima facie proof of proper service (see Countrywide Home Loans Servicing, LP v Albert, 78 AD3d [*2]983 [2010]). As a result, defendant did not meet its burden of establishing that the six-year statute of limitations applicable here (see CPLR 213 [2]; Mandarino v Travelers Prop. Cas. Ins. Co., 37 AD3d 775 [2007]) had expired prior to the commencement of the action.

Defendant’s claim that this action had, in fact, been previously dismissed is not substantiated by the record on appeal. It should be noted that defendant’s submission of an answer in 2008 and its service of discovery demands acted as a waiver of any right it may have had to dismissal, pursuant to CPLR 3215 (c), of the 2003 complaint, to which complaint defendant allegedly had never previously served an answer (see Gilmore v Gilmore, 286 AD2d 416 [2001]; Gonzalez v Gonzalez, 240 AD2d 630 [1997]; Sutter v Rosenbaum, 166 AD2d 644 [1990]; Myers v Slutsky, 139 AD2d 709 [1988]; Avir Surgical Supplies, Inc. v Windsor Group Ins. Co., 32 Misc 3d 134[A], 2011 NY Slip Op 51452[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur.

Decided on June 13, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 1, 2011. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion for summary judgment.

A no-fault provider establishes its prima facie entitlement to judgment as a matter of law by submitting evidence, in admissible form, that the claim forms were mailed to and received by the defendant insurer, which failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]), or issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

While the supporting affidavit by plaintiff’s billing agent established that plaintiff had mailed the claim forms in question to defendant, and that defendant had failed to pay those claims within the requisite 30-day period, the affidavit failed to demonstrate either that defendant had failed to deny the claims within the requisite 30-day period or that defendant had issued timely denial of claim forms which were conclusory, vague or without merit as a matter of law. As plaintiff failed to meet its initial burden of establishing its prima facie entitlement to judgment as a matter of law, plaintiff’s motion for summary judgment was properly denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33).

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Aliotta and Solomon, JJ., concur.

Decided on June 9, 2014

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered September 26, 2013, which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Ruben Franco, J.), entered September 26, 2013, reversed, with $10 costs, plaintiff’s cross motion denied and defendant’s motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing this action for first-party no-fault benefits by submitting competent evidence establishing the proper and timely mailing of the notices scheduling the assignor’s independent medical examinations and examinations under oath, as well as the assignor’s failure to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]). With respect to the latter, defendant’s moving submission, including the sworn affidavits of the scheduled examining physicians, set forth facts sufficient to demonstrate the affiants’ personal knowledge of the assignor’s repeated failures to appear for the duly scheduled IMEs, and the affiants’ actions, “in the ordinary course of business,” in advising defendants’ third-party biller of such nonappearance. As to defendant’s mailing of the EUO notices, we note that the assignor’s address as listed in the notices was consistent with that appearing on the claim form submitted by the plaintiff medical provider, which, notably, offered no persuasive explanation, either below or on appeal, as to why the notices were returned to defendant as “unclaimed.” In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on May 30, 2014

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered September 30, 2013, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Robert R. Reed, J.), entered September 30, 2013, affirmed, with $10 costs.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013] American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). “Accordingly, when [plaintiff’s] assignor[] failed to appear for the requested medical exams, [defendant] had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decided on May 29, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 23, 2012, deemed from a judgment of the same court entered March 30, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 23, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $5,365.79.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered February 23, 2012 as granted the branches of plaintiff’s motion seeking summary judgment on the first through thirteenth causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the first through thirteenth causes of action and in favor of plaintiff on the fourteenth cause of action following a calculation of statutory interest and an assessment of attorney’s fees thereon.

In this action by a provider to recover assigned first-party no-fault benefits,

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule independent medical examinations (IMEs), which affidavit established that the scheduling letters had been timely mailed in accordance with that office’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affidavit by the healthcare professional who was to perform the IMEs, which affidavit established that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. [*2]v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An affidavit executed by defendant’s litigation examiner sufficiently described defendant’s standard mailing practices and procedures to establish the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) for the first through thirteenth causes of action.

Since an assignor’s appearance at an IME “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722), the branches of plaintiff’s motion seeking summary judgment on those 13 causes of action should have been denied, and the branches of defendant’s cross motion for summary judgment seeking to dismiss those causes of action should have been granted.

However, defendant did not deny the claim upon which plaintiff’s 14th cause of action was based until October 21, 2010, which was more than two months after plaintiff’s assignor had failed to appear for his second scheduled IME and more than three months after defendant’s receipt of the claim. While defendant alleges that it tolled its 30-day period to pay or deny the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]) by timely requesting written verification (see id. at § 65-3.5 [b]), the letters sent by defendant to plaintiff were insufficient to constitute verification requests (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, defendant failed to demonstrate that this claim had been timely denied. In view of the foregoing, we do not disturb so much of the order of the Civil Court as granted the branch of plaintiff’s motion seeking summary judgment on the 14th cause of action and denied the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action. Accordingly, the judgment is reversed, so much of the order entered February 23, 2012 as granted the branches of plaintiff’s motion seeking summary judgment on the first through thirteenth causes of action and denied the branches of defendant’s cross motion for summary judgment seeking dismissal of those causes of action is vacated, those branches of plaintiff’s motion are denied, those branches of defendant’s cross motion are granted, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the first through thirteenth causes of action and in favor of plaintiff on the fourteenth cause of action following a calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 29, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered February 28, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. Defendant alleged that it had timely denied the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations. The court stated that the only issue for trial was “the proper mailing of the denials.”

In support of its motion, defendant submitted an affidavit by its no-fault litigation examiner which established that the denial of claim forms had been timely mailed in accordance with defendant’s standard mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In view of the foregoing, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 29, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered February 28, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint. The court stated that the only issue for trial was the mailing of the denial (see CPLR 3212 [g]).

A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff’s claims after plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant’s contention, such a defense is subject to preclusion if defendant’s denial of claim forms were untimely (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009], lv denied 13 NY3d 714 [2009]; see also Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 29, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 31, 2012. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claim at issue based on a lack of medical necessity. Plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint.

Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue. Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied. We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 29, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered November 15, 2011. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant’s motion.

Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion was properly denied (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on May 29, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered January 20, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2011 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s sole contention on appeal, the affidavits and documents submitted by defendant in support of defendant’s motion were sufficient to establish that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]; see also CPLR 4518). Plaintiff’s contention that one of the affidavits submitted by defendant should not have been considered because it did not comply with CPLR 2309 (c) was not raised below and is therefore waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]; Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.